Judgment:
ORDER
Prakash Shrivastava, J.
1. This appeal has been filed under Order 43 Rule 1, CPC challenging the order dated 3-9-03, passed by the Court of Additional Distt. Judge, Ujjain in Miscellaneous Civil Case No. 25/03 rejecting the appellant's application for restoration of MJC No. 43/02.
2. The brief facts are that the appellant had filed a suit for declaration and injunction against the non-appellant No. 1 that suit was dismissed due to the non-appearance of the Counsel for the appellant on 8-4-02. The appellant filed MJC No. 43/02 under Order 9 Rule 9, CPC for setting aside the order of dismissal of suit in default but that MJC also came to be dismissed in default on 6-8-02. Consequently, the appellant filed MCC No. 25/03 making a prayer that the order dated 6-8-02 may be recalled and the MJC No. 43/02 filed by him may be restored to its original position and decided on its own merit.
3. The Trial Court by the order dated 3-9-03 has dismissed the MCC No. 25/03 filed by the appellant on the ground that no sufficient ground was shown by the appellant for his non-appearance on 6-8-02. The Trial Court did not accept the appellant explanation in respect of the fault of the Counsel on the ground that the Advocate was not examined in the MCC. The Trial Court also took the view that as per Article 122 of the Limitation Act, the MCC should have been filed within 30 days from the date of dismissal of MJC No. 43/02, but since the MCC was filed beyond the period of 30 days and no application for condonation of delay was filed, therefore, the delay could not be condoned and MCC was liable to be dismissed. Accordingly, the Trial Court on the aforesaid reasoning dismissed the appellant's application for restoration.
4. It needs to examine if the Trial Court is right in taking the view, the provisions of Article 122 of Limitation Act, is attracted to an application which is filed for restoration of the application under Order 9 Rule 9.
5. A perusal of Article 122 indicates that this article is attracted in respect of the applications made for restoration of a suit, appeal, application for review or revision dismissed for default of appearance. In the presence case, the appellant had applied for restoration of his application under Order 9 Rule 9 read with Section 151, CPC. Such an application is not covered under Article 122 of the Limitation Act.
6. The same issue in similar circumstances had come up before the Division Bench of this Court in the matter of Pooranchand v. Komalchand reported in : AIR 1962 MP 64, where the suit of the plaintiff was dismissed in default under Order 9 Rule 8 and the application for restoration was also dismissed in default and the plaintiff had moved an application under Section 151 of the CPC for restoration of his application for restoration of the suit. The Division Bench of this Court had considered the question of applicability of Article 163 of the old Limitation Act (Article 122 of the new Limitation Act).
7. The Division Bench of this High Court in the matter of Pooranchand (supra), held that:
(5) We entirely agree with the view expressed in 28 Nag LR 83 : AIR 1932 Nag 101 (supra), Order 9 in terms applies only to suits. The remedy under Order 9 Rule 9, CPC is not a matter of procedure See: Sitaram v. Bapurao 1953 Nag LJ 144 : AIR 1953 Nag 153. The rule gives a substantive right of applying for restoration of a suit dismissed for default and this right cannot be conferred by Section 141 when it is made applicable to proceedings initiated on an application for setting aside the dismissal in default of an application for restoration of a suit under Order 9 Rule 9, CPC. Section 141 deals only with procedure and not with any substantive right. It does no more than provide the procedure to be adopted by Courts of civil jurisdiction in dealing with matters before them. It does not provide that the Code is to be applied in its entirety to such proceedings so as to confer the right of appeal or any other substantive right in those proceedings. Order 9 Rule 9 cannot, therefore, be invoked for setting aside the dismissal in default of an application for restoration of a suit under that rule. On the same principle an order dismissing in default an application for restoration of a suit under Order 9 Rule 9 is not open to appeal under Order 43 Rule 1(c). The dismissal of such an application for default is in the exercise of the inherent powers of the Court. That being so, the dismissal can be set aside by the exercise of the same inherent powers.
As an application made to invoke the inherent powers of the Court under Section 151 is not an application under the Code which a party is required to make, Article 163 has no applicability. That apart, reading Articles 163 and 164 together it is clear that Article 163 prescribes limitation for an application to set aside the dismissal for default of a suit and not for an application to set aside the dismissal for default of a suit and not for an application to set aside the dismissal for default of an application for restoration of a suit under Order 9, Rule 9, CPC. The view that an application invoking the inherent powers of the Court under Section 151, CPC is not governed by Article 181 or any other article of the Limitation Act is fortified by the decisions in Goverdhan v. Hemrajsingh : ILR (1944) Nag 408 : AIR 1944 Nag 335, Annada Prasad v. Sushil Kumar : AIR 1942 Cal 390, and Shyam Sunder v. Nilakantha Das : AIR 1956 Orissa 165. Though there is no limitation for invoking the inherent powers of the Court under Section 151, the party invoking that jurisdiction must be diligent and not guilty of laches.
(9) For all these reasons, our answer to the question referred to by the learned Single Judge is that the dismissal for default of an application for restoration of a suit under Order 9 Rule 9, CPC can be set aside in exercise of the inherent powers of the Court under Section 151, CPC and that the exercise of inherent powers is not fettered by any rule of limitation.
8. The judgment of the Division Bench of this Court in the matter of Pooranchand (supra) has subsequently being followed by the Patna High Court in the matter of Somar Bhyiya v. Kapil Kumar reported in : AIR 1974 Patna 289 (V 61 C83).
9. The Division Bench in the matter of Pooranchand (supra), took the view that Order 9 in terms applies only to suit and Order 9 Rule 9 cannot be invoked for setting aside the dismissal in default of an application for restoration of a suit under that Rule. The dismissal of such an application for default is in the exercise of the inherent power of the Court and that being so its dismissal can be set aside by exercise of the same inherent power. Thus, in the present case dismissal of MJC No. 43/02 by the Trial Court by order dated 6-8-02 was not a dismissal under Order 9 Rule 9, but it was dismissal under the inherent power of the Court and an application made for setting aside such an order would not be covered by Article 122 of the Limitation Act.
10. In view of the aforesaid position in law, we find that the Trial Court was not right in taking the view that the application filed by the appellant was beyond the period of Limitation prescribed under Article 122.
11. Now it is to be seen whether the appellant had disclosed the sufficient ground for setting aside the order of dismissal in default dated 6-8-02 in MJC No. 43/02.
12. Record indicates that in the application the appellant had disclosed that on 6-8-02, when the MJC No. 43/02 had come up before the Court for consideration by that time the appellant was already examined as witness and his Advocate was to appear for further proceedings in the case, but his Advocate did not appear without intimation to the appellant resulting in dismissal of the MJC in default. It is the settled position in law that the litigant cannot be made to suffer due to the fault of his Advocate. The appellant in the present case has not only filed the application under Section 151, but has also filed an affidavit in support of the averments made in the application and in his oral examination also he had explained the reason for his non-appearance on 6-8-02.
13. The application as well as the oral deposition of the appellant also sufficiently explain the reason for not filing the application for setting aside the order dated 6-8-02 immediately. On the basis of material placed on record, it is found that after the order dated 6-8-02 the appellant was arrested in some milk case and was in jail. Thereafter, his wife was unwell and hospitalized and during this period he had also tried to contact his Advocate, but he could not meet him. He has filed the document of medical treatment of his wife. Considering this material, it is found that the appellant has successfully explained the reason for not filing the application for setting aside the order dated 6-8-02 within a reasonable period.
14. It is also worth noting that the suit of the appellant was dismissed in default of appearance of his Counsel under Order 9 after such an order filing of the fresh suit is barred.
15. In view of the aforesaid, appeal is allowed, the order dated 3-9-03 is set aside. The MCC No. 25/03 filed by the appellant is allowed with cost of Rs. 1000/- payable to respondent. The MJC No. 43/02 is restored to its original position and the Trial Court is directed to decide the MJC No. 43/02 on its own merit without being influenced with any observation made in this order.